A Will is used to set out how a person’s property will be divided at the time of their death. It can also address when and how certain gifts will be made and the payment of debts. A Will can contain provisions to avoid estate taxes and is generally an important building block in an estate plan.
Most individuals will benefit from a Will and yet in our experience, we find a large number of people that die without a Will. Not having a Will can have unintended results on the transfer of your property, especially in situations where there are children from a prior relationship. Not having a Will can also increase the costs to resolve the person’s estate in probate. Your property will be divided according to Texas Estate Code provisions instead of how you wanted.
Our attorneys will provide you with a confidential and personal consult to discuss your needs and they will help you find the best solution. Most individuals and couples just need a simple Will and in that situation, lawyers will provide the will along with a Living Will (directive to physicians) as well as Financial and Health Care Powers of Attorney at the same time. Your attorney at Carroll & Hinojosa, PLLC will help you determine if you need a Will that contains tax planning provisions and prepare it for you, if needed.
Denial is a dangerous state of existence. Living in denial of your bad credit, for example, or of your outstanding traffic tickets generally leads to horrible consequences that oftentimes could have been avoided. Likewise, living in denial of your need for a Will can lead to unwanted consequences—like your assets being left to someone other than who you intended to receive them. Texas has very specific laws that regulate what will happen to your property if you pass away without a valid Will. For most, the laws that determine how your property will be distributed are not exactly what the individual would have wanted. That’s why it is vital for you to create a Will that will be upheld during the probate process after you’re gone. Your Will is the last thing that will be able to speak for you and your wishes regarding your property distribution—so it’s wise to do everything in your power to ensure it will be held valid.
Creating a Will during one’s lifetime is basically like leaving specific instructions for how everything is to be distributed upon death. A person who creates a Will during one’s lifetime is referred to as “Testator” after death. The Will must be introduced in Probate Court within four years of Testator’s death and, if declared valid, will be admitted and the property of the Testator’s estate will be distributed according to the terms of the Will.
If an individual passes away without creating a Will, the person is deemed to have passed “intestate.” This term is simply the legal jargon used to refer to the situation where someone doesn’t have a valid Will in place when they pass. If a person dies “intestate,” the entire estate will be distributed according to the laws of intestacy in Texas. These laws are too complicated to try to simplify in a single paragraph here, but the important takeaway is this: if you pass away without creating a Will, your entire estate will pass without regard to your wishes and will be distributed by the black letter of the law. No amount of arguing or pleading by your loved ones will be able to change the outcome if you pass intestate, the law will decide who gets what despite what you would have wanted. An exception is where all your heirs agree to settlement, but that still requires additional legal fees.
Don’t risk your assets or your money to the cut and dry laws of intestacy: be proactive. Choose not to live in denial about something as important as the legacy you will leave to your loved ones. Talk to a qualified attorney about the options available to you to create a Will. There are a couple of different types of Wills that are allowed under Texas law. Consider discussing the options available and what type would best suit the needs of your estate with one of our experienced attorneys today. For more information on the types of Wills available in Texas, consult the following article on Will Varieties in Texas.
Texas law provides for two different methods for the creation of a valid Will. Both of the valid Will types are written wills: the first being an Attested Will and the second, a Holographic Will. Texas generally does not recognize any oral wills as valid.
This is the more formal creation of a Will. This is the process by which a Will is drafted and signed by two witnesses. The witnesses should be disinterested parties and must be at least 14 years of age. The two witnesses need not know that what is being signed is a Will. They also do not need to witness Testator (the one creating the Will) sign the document. However, the witnesses must sign in the presence of Testator. An Attested Will can be self-proving, but is not required to be. Alternately, the Will can be proven through Probate by witnesses. It is often better to include a self-proving affidavit with your Will to ensure its validity is upheld and to help combat any attempts to contest the Will during the Probate process.
A Holographic Will is a type of Will that is created singlehandedly by Testator and requires no witnesses to sign. To create this type of Will, an individual must write the entire Will in his or her own handwriting and then sign the Will. No part of the Will can be typed or written in a different individual’s handwriting than Testator or the Will won’t stand up to the test of validity and will be declared void. In certain circumstances, if there is other writing on the handwritten Will that has nothing to do with the Will (i.e. it was written on the back of a grocery receipt), it is possible that it will be held valid so long as the typewritten words do not relate to the Will at all. If you think a Holographic Will might the best fit for you, take advantage of the fact that our law office offers a free consultation and at least seek some advice regarding your personal situation and what would be the best assurance that your property is distributed how you want when you’re gone.
Regardless of which route to a valid Will you take, there are certain requirements that must be met. In order to create a valid Will, it must be determined that the Testator has “Testamentary Capacity.” This form of capacity is determined by Testator meeting several required characteristics. The first is that you must meet one of the following requirements: either be 18 years of age or older, be married, or be a member of the armed forces in order to create a valid Will. Failure to fall within one of those categories means anything you create intending to be a Will is considered void and will not be enforced. The second characteristic you must demonstrate is that of Testamentary Intent: this means that the Testator must intend that the document being created is meant to be a Will. Third, it must be shown that the Testator has Capacity, which is composed of several factors: that the Testator must (1) understand that the document being signed is a Will; (2) that the effect of the Will is to distribute property upon death; (3) the natural objects of Testator’s bounty—this essentially means Testator must know the identity of Testator’s heirs; and (4) the nature and extent of Testator’s property—basically that Testator knows what Testator owns. All four of these elements must be met in order to prove Testamentary Capacity.
We understand that each individual’s situation is different. Depending on your estate and the complexity of the distribution you want to achieve, you may need to include other formal instruments, such as a will that incorporates tax planning provisions to avoid estate taxes at death or possibly setting up a Trust. Whatever your situation, we can help custom-design a plan for you that will leave your loved ones in the best position to go through the Probate process without any added difficulty. Let us help you ensure your loved ones will be taken care of by the legacy you leave.
The Medical Power of Attorney allows your agent to make medical decisions for you and consent to treatment when and if you are not able to make informed decisions. A Medical Power of Attorney does not mean that you can no longer make your own decisions. To the contrary, so long as you remain capable of making your own medical decisions, you will make your decisions. However, in the event of incapacity (perhaps due to dementia or Alzheimer’s disease or something like more emergent like car accident case) your agent can give consent for medical treatment. An individual who can no longer consent to medical treatment runs the risk of a legal guardianship or having default laws determine who makes a medical decision. In our opinion, it’s always best for you to choose the person who will make medical decisions for you – not someone else.
Guardianship becomes important when a person, or Ward, is found to be unable to care for him or herself, and a Guardian becomes necessary to assist in handling the Ward's affairs. There are two types of Guardians. There is a Guardian of the Person, who is appointed to care for the personal needs of the Ward. And there is a Guardian of the Estate, who is appointed to care for the property, or estate of the Ward. These two positions may be filled by the same person or entity, or two separate persons or entities.
While guardianship matters are very important, an estate plan (see above) can be invaluable in either avoiding the need for a guardianship, or appointing a guardian ahead of time so that the Ward can be sure a person they pick will have the opportunity to care for them.
If you think your loved one is in need of a guardian call for a no obligation, confidential, consultation. Let one of our Guardianship Lawyers tell you how we can help.
Parents and loved ones of people with special needs that are on SSI, Medicaid, or receiving other government benefits, have often heard, over and over again, that the person with a special need cannot have more than $2,000 in assets or they’ll lose their benefits. This message should not be ignored, but it should not be taken at face value either. If you want to distribute part of your estate to an individual who is receiving need-based assistance, like SSI or Medicaid, let us discuss with you whether a special needs trust will allow you to meet your goals and allow the beneficiary to maintain his/her eligibility for benefits.
A Last Will and Testament, when it contains the appropriate language, can be used to create trusts for minors (or adults), designate guardians for minor children of the individual, and provide for a person with a disability, while protecting that person’s government benefits. If you choose to make the gift or distribution to someone while you are alive, we can help you set up an appropriately worded Special Needs Trust (outside of a will) and make sure your estate planning documents coordinate with the will.
